JUDGMENT OF THE COURT
This is a second appeal from the decision of the High Court of Kenya in its appellate jurisdiction. Our mandate in such an appeal is donated by Section 361 of the Criminal Procedure Code and we are to deal with issues of law only if we find that there are such issues in the appeal. We are to avoid matters of fact which have been tried by the trial court and re-tried in the first appeal – See for a judicial pronouncement of this mandate the case of Stephen M’Riungu v. Republic [1982-88] 1 KAR, 360 where this passage appears:
“Where a right of appeal is confined to questions of law only, an appellate court has to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be…